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Teens avoid prison

Home detention for attack and theft at dairy.

Two teens who robbed a dairy of about $3000 worth of cigarettes after one of them attacked the shopkeeper with a hammer have been sentenced to home detention.

The Crown wanted them jailed, prosecutor James Bridgman saying this was a marked escalation in their offending and rehabilitative efforts for earlier offending had been unsuccessful.

Xavier Gray and Tyrique Moana were both 17 when they robbed a dairy on Wainui Road at about 6.45pm on November 22 last year. Gray attacked the owner with a hammer.

They subsequently pleaded guilty to aggravated robbery and were sentenced together in Gisborne District Court.

Judge Warren Cathcart imposed 17 months imprisonment for each before converting it to home detention.

Given their youth, the pair were exempt from a three strike warning that normally applies for robbery.

The sentence starting point was five years, as per higher authority guidelines for shop robberies in which staff are confined or assaulted.

Both received similar discounts — seven months for the time spent awaiting sentence in a youth justice facility (about 120 days), a full 25 percent (15 months) for guilty pleas and 21 months for youth and individual mitigating factors combined.

Judge Cathcart agreed with the Crown’s submission that sentencing should be strongly focused on general deterrence because of the prevalence of aggravated robberies of dairies by young offenders in this region.

The judge emphasised the youth of the two accused was the important factor in his decision to convert the sentences.

Summarising the offending, the judge said the shop owner went outside the store after noticing Gray and Moana appeared to be loitering. Gray was wearing a mask.

He immediately attacked the store keeper with a hammer, chasing him about 20 metres along the street and causing him to fall over. Gray kicked and further repeatedly hit the man with the hammer as he lay on the ground.

Moana used the opportunity to enter the store. He leapt over the counter and took an armload of cigarettes from a cabinet.

Gray left the shop owner on the street and ran into the store with a backpack, loading it with cigarettes and tobacco products before he and Moana fled to nearby Crawford Road.

Police located them there a short time later. Gray was hiding in a bush; Moana behind a van.

Both refused to comment. They were previously known to police and have Youth Court notations.

The shop owner suffered bruising and scraping, especially to his legs.

Seven packets of tobacco were recovered. Insurance covered $1000 of the value of the lost property.

Advocating for the five-year starting point, Mr Bridgman pointed to aggravating features including the pair’s combined effort, the use of disguises and violence to enforce their roles and the significant value of property taken.

Mr Bridgman said the Crown was concerned about the pair’s lack of previous success in rehabilitative processes and questioned their suitability for electronically-monitored sentences.

He said cultural reports did not show a link between the offending and systemic deprivation for either offender but were valuable in assisting the court to understand their personal backgrounds.

The reports highlighted the difficulty each had in articulating insight and remorse, the presence of which he now accepted, Mr Bridgman said.

For Moana, counsel Vicky Thorpe (appearing for assigned counsel Alistair Clarke) submitted the cultural report did show a causal connection between Moana’s background and the offending for which he should get discrete discount.

She took issue with the suggestion chances of rehabilitation for Moana were low. Maturity did not happen overnight or magically at any particular age, Ms Thorpe said. Moana was still at an age where there was still a prospect of rehabilitation with the right work and interventions.

The risk of Moana not complying with an electronically-monitored sentence should be weighed against the known risks of incarceration for young people — imprisonment being a chance to build criminal experience and form further connections within the criminal world and not being a place to learn about healthy relationships with family, employers, and others, Ms Thorpe said.

She pointed to 2018 comments about youth justice in New Zealand by then Chief Justice Dame Sian Elias: “It is through socialisation, inclusion and connection, not punishment, that young people learn to obtain respect for others by respecting themselves. As a community, we are all invested in growing healthy, respectful and supported young people.”

For Gray, counsel Adam Simperingham noted the violence was largely out of character. He was doing well in the structured environment of the youth justice facility and responding well to interventions there.

Aside from his youth, Gray had health conditions that made him suggestible and prone to bad decisions.

Mr Simperingham suggested a stern reminder from the court about compliance with the electronic sentence would be useful for Gray. His proposed address was a small, two-bedroomed flat. The sentence would not be easy.